EXHIBIT 8(x)
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is entered into as of this ____day of March, 2005 among
XXXXXXX XXXXX LIFE INSURANCE COMPANY (the "Company"), a life insurance company
organized under the laws of the State of Arkansas (on behalf of itself and
certain of its separate accounts); AMERICAN FUNDS INSURANCE SERIES ("Series"),
an open-end management investment company organized under the laws of the
Commonwealth of Massachusetts, and CAPITAL RESEARCH AND MANAGEMENT COMPANY
("CRMC"), a corporation organized under the laws of the State of Delaware.
WITNESSETH:
WHEREAS, the Company proposes to issue, now and in the future, certain
variable annuity contracts that provide certain funds ("Funds") of the Series as
investment options (the "Contracts") and said Contracts are listed in Attachment
A hereto, as it may be amended from time to time by mutual written agreement;
WHEREAS, the Company has established pursuant to Arkansas insurance law
one or more segregated asset accounts listed in Attachment A hereto as may be
amended from time to time (each, an "Account") for purposes of setting aside and
investing assets attributable to the Contracts and has or will register each
Account (unless the Account is exempt or excluded from such registration) with
the United States Securities and Exchange Commission (the "Commission") as a
unit investment trust under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, the Contracts, which are or will be registered by the Company
with the Commission for offer and sale under the Securities Act of 1933 (the
"1933 Act") or which are or will not be registered because they are properly
exempt from registration under the 1933 Act or will be offered exclusively in
transactions that are properly exempt from registration under the 1933 Act, will
be in compliance with all applicable federal securities and state securities and
insurance laws prior to being offered for sale;
WHEREAS, the Company will register and qualify the Contracts or interests
therein as securities in accordance with the laws of the various states only if
and to the extent deemed advisable by the Company;
WHEREAS, the Series is registered as an open-end management investment
company under the 1940 Act and shares of the Funds are registered under the 1933
Act;
WHEREAS, the Series has received a "Mixed and Shared Funding Order" from
the Commission granting insurance companies that have entered into participation
agreements with the Series and CRMC ("Participating Insurance Companies") as
well as their variable annuity
and variable life insurance separate accounts exemptions from the provisions of
Sections 9(a), 13(a), 15(a), and 15(b) of the 1940 Act to the extent necessary
to permit shares of the Series to be sold to and held by variable annuity and
life insurance separate accounts of affiliated and unaffiliated life insurance
companies (the "Mixed and Shared Funding Exemptive Order");
WHEREAS, the Series is divided into various Funds, each Fund being subject
to certain fundamental investment policies which may not be changed without a
majority vote of the shareholders of such Fund;
WHEREAS, certain Funds listed in Attachment B to this Agreement will serve
as certain of the underlying investment options for the Contracts and will be in
compliance with all applicable laws prior to being offered as such investment
options; and
WHEREAS, CRMC is the investment adviser for the Series and is duly
registered as an investment adviser under the Investment Advisers Act of 1940,
as amended.
NOW, THEREFORE, in consideration of the foregoing and of mutual covenants
and conditions set forth herein and for other good and valuable consideration,
the Company, the Series and CRMC hereby agree as follows:
1. The Series and CRMC each represents and warrants to the Company that:
(a) a registration statement under the 1933 Act and under the 1940 Act
with respect to the Series and its shares has been filed with the Commission in
the form previously delivered to the Company, and the Series will amend its
registration statement from time to time as required in order to effect the
continuous offering of its shares, and copies of any and all amendments thereto
will be forwarded to the Company at the time that they are filed with the
Commission; (b) Fund shares sold pursuant to this Agreement are duly authorized
for issuance and sold in compliance with applicable state and federal securities
laws, and the Fund is and shall remain registered under the 1940 Act; (c) the
Series is, and shall be at all times while this Agreement is in force, lawfully
organized, validly existing, and properly qualified as an open-end management
investment company in accordance with the laws of the Commonwealth of
Massachusetts and that it does and will comply in all material respects with the
1940 Act; (d) the Series' registration statement and any further amendments
thereto will, when they become effective, and all definitive prospectuses and
statements of additional information and any further supplements thereto (the
"Prospectus") shall, conform in all material respects to the requirements of the
1933 Act and the 1940 Act and the rules and regulations of the Commission
thereunder, and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statement therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Series by
the Company expressly for use therein; and (e) all of their trustees/directors,
officers, employees, investment advisers, and other individuals or entities
dealing with the money and/or securities of the Series are and shall continue to
be at all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Series in an amount not less than the minimum coverage as
required currently by Rule 17g-1 of the 1940 Act or related provisions as may be
promulgated from time to time; the aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding company.
2. The Series and CRMC will provide to the Company at least one complete
copy of all registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other promotional
materials, and all amendments to any of the above, that relate to the Series or
its shares, promptly after the filing of such document(s) with the Commission or
other regulatory authorities. Notwithstanding the foregoing, the Series will
furnish to the Company such information with respect to the Series in such form
and signed by such of its officers as the Company may reasonably request, and
will warrant that the statements therein contained when so signed will be true
and correct. The Series will advise the Company immediately of: (a) the issuance
by the Commission of any stop order suspending the effectiveness of the
registration statement of the Series or the initiation of any proceeding for
that purpose; (b) the institution of any proceeding, investigation or hearing
involving the offer or sale of the Contracts or the Series of which it becomes
aware; or (c) the happening of any material event, if known, which makes untrue
any statement made in the registration statement of the Series or which requires
the making of a change therein in order to make any statement made therein not
misleading.
The Series will provide the Company with as much notice as is reasonably
practicable of any proxy solicitation for any Fund, and of any material change
in the Series' registration statement, particularly any change resulting in a
change to the registration statement or prospectus for any Account. The Series
will work with the Company so as to enable the Company to solicit proxies from
Contract owners, or to make changes to its prospectus or registration statement,
in an orderly manner. The Series will make reasonable efforts to attempt to have
changes affecting Contract prospectuses become effective simultaneously with the
annual updates for such prospectuses.
3. The Series will register for sale under the 1933 Act and, if required,
under state securities laws, such additional shares of the Series as may
reasonably be necessary for use as the funding vehicle for the Contracts.
4. The Series agrees to make Class 2 shares of the Funds listed in
Attachment B hereto available to the Contracts. Fund shares to be made available
to Accounts for the Contracts shall be sold by the Series and purchased by the
Company for a given Account at the net asset value of the respective class of
the respective Fund (without the imposition of a sales load) next computed after
receipt of each order by the Series or its designee, as established in
accordance with the provisions of the then current Prospectus of the Series. All
transactions in Account shares shall be executed through the Omnibus Accounts of
Company's affiliate Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Inc. ("Omnibus
Accounts"). For purposes of this Paragraph 4, the Company shall be a designee of
the Series for receipt of such orders from each Account (but not with respect to
any Fund shares that may be held in the general account of the Company), and
receipt by such designee by 4:00 p.m. Eastern time (or other such time the Board
of Trustees of the Series shall so designate) shall constitute receipt by the
Series; provided that the Series
receives notice of such order by 9:00 a.m. Eastern time on the following
Business Day ("Next Business Day"). "Business Day" shall mean any day on which
the New York Stock Exchange ("NYSE") is open for trading and on which the Series
calculates the net asset values of each class of shares of each Fund pursuant to
the rules of the Commission. The Series will make the shares of each class of
each Fund available indefinitely for purchase at the applicable net asset value
per share by the Company and its Accounts on those days on which the Series
calculates the net asset values of each such class pursuant to the rules of the
Commission, and the Series shall use its best efforts to calculate such net
asset values on each day on which the NYSE is open for trading. The Series shall
make the net asset value per share for each class of each Fund available to the
Company on a daily basis as soon as reasonably practical after the Series
calculates such net asset values per share, and the Series shall use its best
efforts to make such net asset values per share available by 6:30 p.m. Eastern
time via the NSCC Profile I platform. In the event the Series is unable to make
the 6:30 p.m. deadline stated herein, it shall provide additional time for the
Company to place orders for the purchase and redemption of shares. Such
additional time shall be equal to the additional time which the Series takes to
make the closing net asset value available to the Company. CRMC and the Series
shall report to the Company any material error in the calculation or reporting
of the net asset values, dividends or capital gain information as soon as
practicable upon discovery. The Series and CRMC are responsible for calculating
and maintaining net asset values for each class of each Fund in accordance with
the requirements of the 1940 Act and the Series' then current Prospectus.
Payments for shares purchased and redeemed will be made in federal funds
transmitted via the NSCC Fund/SERV DCC & S platform to the Company on the Next
Business Day following the Company's receipt of the order (unless the Series
determines and so advises the Company that payment for shares purchased is
unnecessary as sufficient proceeds are available from redemption of shares of
other Funds effected pursuant to redemption requests tendered by the Company),
and the Company and the Fund shall each use commercially reasonable efforts to
transmit (or cause to be transmitted) funds to the other, for the purpose of
settling net purchase orders or orders of redemption, by 3:00 p.m. Eastern time
on such Business Day. Upon receipt of federal funds so transmitted via the NSCC
Fund/SERV DCC & S platform, such funds shall cease to be the responsibility of
the sender and shall become the responsibility of the recipient. Notwithstanding
any provision of this Agreement to the contrary, for purchase and redemption
instructions with respect to any shares, Company and the Series will settle the
purchase and redemption transactions referred to herein via the NSCC Fund/SERV
platform settlement process on the next Business Day following the effective
trade date. The Series will provide to Company a daily transmission of positions
and trading activity taking place in the Omnibus Accounts using Company's
affiliate's proprietary Inventory Control System ("ICS").
Any purchase or redemption request for Fund shares held or to be held in
the Company's general account shall be effected at the closing net asset value
per share next determined after the Fund's receipt of such request, provided
that, in the case of a purchase request, payment for Fund shares so requested is
received by the Series in federal funds prior to close of business for
determination of such value, as defined from time to time in the Series
Prospectus.
The Series reserves the right to temporarily suspend sales if the Board of
Trustees of the Series, acting in good faith and in light of its fiduciary
duties under federal and any applicable
state laws, deems it appropriate and in the best interests of shareholders or in
response to the order of an appropriate regulatory authority. The Company
reserves the right to refuse, to impose limitations on, or to limit any
transaction request if the request would tend to disrupt Contract administration
or is not in the best interest of the Contract holders or an Account or
subaccount thereof (each a "Subaccount").
5. The Contracts funded through each Account will provide for the
allocation of net amounts among certain Subaccounts for investment in shares of
a class of the Funds as may be offered from time to time in the Contracts. The
selection of the particular Subaccount is to be made by the Contract owner and
such selection may be changed in accordance with the terms of the Contract and
the Contract prospectus.
6. Issuance and transfer of the Series' shares will be by book entry only.
No stock certificates will be issued to the Company or the Account. Shares
ordered from a particular Fund will be recorded by the Series as instructed by
the Company in an appropriate title for the corresponding Account or Subaccount.
7. The Series shall furnish notice promptly to the Company of any dividend
or capital gain distribution payable on any shares underlying Subaccounts. The
Company hereby elects to receive all such dividends and distributions as are
payable on shares of a Fund recorded in the title for the corresponding
Subaccount in additional shares of that Fund. The Series shall notify the
Company promptly of the number of shares so issued. The Company reserves the
right to revoke this election and to receive all such income dividends and
capital gain distributions in cash.
8. The Series may make payments to finance distribution and/or shareholder
servicing expenses pursuant to Rule 12b-1 under the 1940 Act. Prior to financing
such expenses pursuant to Rule 12b-1, the Series will have its Board, a majority
of whom are not interested persons of the Series, formulate and approve a plan
pursuant to Rule 12b-1 under the 1940 Act to finance distribution and/or
shareholder servicing expenses.
9. The Series shall pay all expenses incidental to its performance under
this Agreement. The Series shall see to it that all of its shares are registered
and authorized for issue in accordance with applicable federal and state laws
prior to their purchase for the Account. The Series shall bear the expenses for
the cost of registration and qualification of its shares, preparation and filing
of prospectuses and statements of additional information to be sent to existing
Contract owners (upon request in the case of the statement of additional
information), proxy statements and related materials and annual and semi-annual
shareholder reports, the setting in type, printing, and distribution of such
items to existing Contract owners (including the costs of printing a prospectus
that constitutes an annual report), the preparation of all statements and
notices required by any federal or state law, and taxes on the issue or transfer
of the Series' shares subject to this Agreement. The Series' Prospectus will
state that the current Statement of Additional Information for the Series is
available, and the Series, at its expense, will provide the Company, at least
once a year, upon its request, with enough copies of its Statement of Additional
Information to be able to distribute one to each Contract owner or prospective
Contract owner who requests such Statement of Additional Information.
With respect to any prospectus and annual and semi-annual reports (the
"Reports") of the Series that are printed in combination with any one or more
such Reports of other investment options for the Contracts (the "Booklet"), the
Series shall bear the costs of printing and mailing the Booklet to existing
Contract owners based on the ratio of the number of pages of the Series' Reports
included in the Booklet to the number of pages in the Booklet as a whole.
10. The Company shall bear the expenses for the cost of preparation and
delivery of Series prospectuses (and supplements thereto) to be sent to
prospective Contract owners. At its expense, the Series shall provide to the
Company printed copies of the Series' current prospectus (and supplements
thereto), the annual and semi-annual shareholder reports for the Series, and any
Series' proxy materials and other communications to shareholders to be
distributed to existing Contract owners once each year in the case of the
prospectus (or more frequently if the prospectus for the Series is amended),
twice each year in the case of the annual and semi-annual shareholder reports,
and as necessary in the case of proxy materials and other communications to
shareholders. The Series shall provide the Company with as many copies of the
Series' current prospectus (and supplements thereto), annual and semi-annual
shareholder reports, and proxy materials and other communications to
shareholders as the Company may reasonably request. If requested by the Company
in lieu thereof, the Series shall provide its prospectus on diskette at the
Series' expense and other assistance as is reasonably necessary in order for the
Company to have the prospectus for the Contracts and the Series' prospectus
printed together in one document (such printing for existing Contract owners to
be at the Series' expense).
11. The Company represents and warrants to the Series that any information
furnished in writing by the Company to the Series for use in the registration
statement of the Series will not result in the registration statement's failing
to conform in all respects to the requirements of the 1933 Act and the 1940 Act
and the rules and regulations thereunder or containing any untrue statement of a
material fact or omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
The Series and CRMC represent and warrant to the Company that any
information furnished in writing by the Series and/or CRMC to the Company for
use in the registration statement for the Contracts will not result in the
registration statement's failing to conform in all material respects to the
requirements of the 1933 Act and the 1940 Act and the rules and regulations
thereunder or containing any untrue statement of a material fact or omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, provided that such information is used in its
entirety without modification.
12. The Company and its affiliates shall make no representations
concerning the Series' shares except those contained in the then current
Prospectus and statement of additional information of the Series, in such
printed information subsequently issued on behalf of the Series or other funds
managed by CRMC as supplemental to the Series' Prospectus, in reports or proxy
material for the Series, in information published on the Series' or CRMC's
internet site, in sales literature or other promotional material approved by the
Series or CRMC, or in materials
approved by American Funds Distributors ("AFD"), as provided in the Business
Agreement in effect among the Company, AFD and CRMC dated as of March , 2005
(the "Business Agreement").
The Series and CRMC and their affiliates shall make no representations
concerning the Contracts or the Account except those contained in the then
current prospectus and statement of additional information for the Contracts, in
such printed information subsequently issued on behalf of the Contracts or the
Account as supplemental to the Contract prospectus, in information published on
the Company's internet site, in sales literature or other promotional material
approved by the Company, or in materials approved by the Company, as provided in
the Business Agreement.
13. Shares of the Series may be offered to separate accounts of various
insurance companies in addition to the Company. The Series represents, warrants
and covenants that no shares of the Series shall be sold to the general public
in contravention of Section 817 of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder (the "Code"). The Series represents and
warrants that each Fund has complied and will continue to comply with the
diversification requirements of Section 817 and the rules and regulations
thereunder, including Treasury Regulation Section 1.817-5, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts, and any amendments or
other modifications or successor provisions to such Section or Regulations. The
Series will invest its assets in such a manner as to ensure that the Contracts
will be treated as annuity or life insurance contracts, whichever is
appropriate, under the Code and the Regulations issued thereunder (or any
successor provisions). In the event of a breach of this Paragraph 13 by the
Series, it will (a) take all reasonable steps to notify the Company of such
breach and (b) immediately take all necessary steps to adequately diversify the
Series so as to achieve compliance within the grace period afforded by
Regulation 1.817-5.
The Series also represents that each Fund is qualified as a "regulated
investment company" ("RIC") under Subchapter M of the Code, and that it will
maintain such qualification, and that it will notify the Company immediately
upon having a reasonable basis for believing that a Fund has ceased to so
qualify or that it might not so qualify in the future.
The Series will provide the Company with securities holdings reports for
each Fund within ten days after each calendar quarter.
14. The parties to this Agreement recognize that due to differences in tax
treatment or other considerations, the interests of various Contract owners
participating in one or more Funds might, at some time, be in conflict. The
Board of Trustees of the Series shall promptly notify the Company of the
existence of irreconcilable material conflict and its implications.
If such a conflict exists, the Company will, at its own expense, take
whatever action it deems necessary to remedy such conflict; in any case,
Contract owners will not be required to bear such expenses.
The Series hereby notifies the Company that it may be appropriate to
include in the Prospectus pursuant to which a Contract is offered disclosure
regarding the risks of mixed and shared funding.
15. The Company agrees to indemnify and hold the Series, CRMC and each of
their respective directors and officers harmless against, any and all losses,
claims, damages, liabilities or litigation (including legal and other expenses)
to which the Series may be subject under any statute or regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements arising as a result of
the Company's: (a) making untrue statement of material facts or omitting
material facts in a Contract's registration statement, prospectus, statement of
additional information, and sales literature for the Contracts (or any amendment
or supplement to any of the foregoing), provided that such statement or omission
or such alleged statement or omission was not made in reliance upon and in
conformity with written information supplied to the Company by the Series or
CRMC; (b) making statements or representations (other than statements or
representations contained in the registration statement, prospectus, statement
of additional information, or sales literature for the Series not supplied by
the Company) or unlawful conduct, bad faith, willful malfeasance, or gross
negligence by the Company with respect to the sale or distribution of the
Contracts or Fund shares; (c) making untrue statements or alleged untrue
statements of material facts or omitting material facts (or allegedly omitting
material facts) in the Series' registration statement, prospectus, statement of
additional information, semi-annual or annual reports to shareholders, or sales
literature (or any amendment or supplement to any of the foregoing) if such
statement or omission was made in reliance upon written information furnished to
the Series or CRMC by or on behalf of the Company; (d) material failure to
provide the services and furnish the materials under the terms of this
Agreement; and (e) materially breaching this Agreement or a representation or
warranty.
The Company shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which the
Series or CRMC would otherwise be subject by reason of the Series' or CRMC's
willful misfeasance, bad faith, or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations or duties under
this Agreement.
The Series and CRMC agree promptly to notify the Company of the
commencement of any litigation or proceedings against them or any of their
officers or directors in connection with the issuance or sale of the Series
shares or the Contracts or the operation of the Series.
16. The Series and CRMC each agrees to indemnify and hold the Company and
each of its directors and officers harmless against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to which
the Company may be subject under any statute or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements arising as a result of the Series',
or CRMC's: (a) making untrue statements of material facts or omitting material
facts in the Series' registration statement, prospectuses or statements of
additional information, semi-annual and annual reports to shareholders, and
sales literature (or any amendment or supplement
to any of the foregoing) provided that such statement or omission or such
alleged statement or omission was not made in reliance upon and in conformity
with written information supplied to the Series or CRMC by the Company; (b)
making statements or representations (other than statements or representations
contained in the registration statement, prospectus, statement of additional
information, semi-annual or annual reports to shareholders, or sales literature
for the Contracts not supplied by the Series or CRMC) or unlawful conduct, bad
faith, willful malfeasance, or gross negligence by the Series or CRMC with
respect to the sale or distribution of the Contracts or Fund shares or the
operation of the Series or a Fund; (c) making untrue statements or alleged
untrue statements of material facts or omitting material facts (or allegedly
omitting material facts) in a Contract's registration statement, prospectus,
statement of additional information, or sales literature (or any amendment or
supplement to any of the foregoing) if such statement or omission was made in
reliance upon written information furnished to the Company by or on behalf of
the Series or CRMC; (d) material failure to provide the services and furnish the
materials under the terms of this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to comply with the diversification
and qualification requirements specified in Paragraph 13 of this Agreement); (e)
failure to comply with any Fund's investment objectives, policies and
restrictions; (f) calculating or reporting materially incorrect or untimely
daily net asset value per share or dividend or capital gain distribution rate;
and (g) materially breaching this Agreement or a representation or warranty.
The Series and CRMC shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which the Company would otherwise be subject by reason of the Company's
willful misfeasance, bad faith, or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations or duties under
this Agreement.
The Company agrees promptly to notify the Series and CRMC of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of the Account.
17. The Company shall be responsible for assuring that the Account
calculates pass-through voting privileges of Contract owners in a manner
consistent with the method of calculating pass-through voting privileges set
forth in the current Contract.- prospectus, so long as and to the extent that
the Commission continues to interpret the 1940 Act to require pass-through
voting privileges for variable contract owners or to the extent otherwise
required by law. The Company will vote Series shares held in any segregated
asset account in the same proportion as Series shares of such Fund for which
voting instructions have been received from Contract owners, to the extent
permitted by law.
18. The Company shall furnish, or shall cause to be furnished, to the
Series or its designee, each piece of sales literature or other promotional
material that the Company develops and in which the Series or a Fund or CRMC is
named. No such material shall be used until approved by the Series or its
designee. The Series or its designee will be deemed to have approved such sales
literature or promotional material unless the Series or its designee objects or
provides comment to the Company within ten Business Days after receipt of such
material. The
Series or its designee reserves the right to reasonably object to the continued
use of any such sales literature or other promotional material in which the
Series or a Fund or CRMC is named, and no such material shall be used if the
Series or its designee so object.
The Series and CRMC, or their designee, shall furnish, or cause to be
furnished, to the Company, each piece of sales literature or other promotional
material that it develops and in which the Company, and/or its Account, is
named. No such material shall be used until approved by the Company. The Company
will be deemed to have approved such sales literature or promotional material
unless the Company objects or provides comment to the Series, CRMC, or their
designee within ten Business Days after receipt of such material. The Company
reserves the right to reasonably object to the continued use of any such sales
literature or other promotional material in which the Company and/or its Account
is named, and no such material shall be used if the Company so objects.
For purposes of this Paragraph 18, the phrase "sales literature and other
promotional materials" includes, but is not limited to, any of the following
that refer to the Series or any affiliate of the Series: advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, or other public media), sales literature
(i.e., any written communication distributed or made generally available to
customers or the public, including brochures, circulars, reports, market
letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, and registration statements, prospectuses,
statements of additional information, shareholder reports, proxy materials, and
any other communications distributed or made generally available with regard to
the Series.
19. The parties understand that there is no intention to create a joint
venture in the subject matter of this Agreement. Accordingly, the right to
terminate this Agreement and to engage in any activity not inconsistent with
this Agreement is absolute. This Agreement will terminate:
(a) by mutual agreement at any time; or
(b) any party at any time upon ninety days' written notice to the other
parties; or
(c) at the option of the Company, CRMC or the Series upon ten calendar
days' prior written notice to the other party if a final
non-appealable administrative or judicial decision is entered
against the other party which has a material impact on the
Contracts;
(d) at the option of the Company, upon ten calendar days' prior written
notice, if shares of the Series are not reasonably available;
(e) at the option of the Company, immediately upon written notice, if
the Series or a Fund fails to meet the requirements for either
diversification under Section 817 or
RIC status under the Code, or if the Company reasonably believes
that the Series or the Fund may fail to so qualify or comply; or if
the Board of the Series terminates the 12b-1 plan; or
(f) in the event the Series' shares are not registered, issued or sold
in accordance with applicable state and/or federal law or such law
precludes the use of such shares as an underlying investment for the
Contracts issued or to be issued by the Company; in such event
prompt notice shall be given by the Company or the Series to the
other party; or
(g) at the Company's option by written notice to the Series and/or CRMC
if the Company shall determine in its sole judgment exercised in
good faith, that either the Series or CRMC has suffered a material
adverse change in its business, operations, financial condition or
prospects since the date of this Agreement or is the subject of
material adverse publicity; or
(h) at the option of the Series or CRMC by written notice to the Company
if the Series or CRMC shall determine in its sole judgment exercised
in good faith, that the Company has suffered a material adverse
change in its business, operations, financial condition or prospects
since the date of this Agreement or is the subject of material
adverse publicity; or
(i) if requested, termination by any party in the event that formal
administrative proceedings are instituted against a party by the
NASD, the Commission, the Insurance Commissioner or like official of
any state or any other regulatory body regarding the party's duties
under this Agreement; provided, however, that the terminating party
determines in its sole judgment exercised in good faith, that any
such administrative proceedings will have a material adverse effect
upon the ability of the other party to perform its obligations under
this Agreement; or
(j) immediately upon notice by the Company of the substitution of the
shares of another investment company or series thereof for shares of
a Fund in accordance with the terms of the Contracts or the Contract
prospectus; or
(k) immediately by any party in the event that the Series' Board of
Trustees determines that a material irreconcilable conflict exists
as provided in Paragraph 14.
The effective date for termination pursuant to any notice given under this
Paragraph shall be calculated beginning with the date of receipt of such notice.
20. All notices, consents, waivers, and other communications under this
Agreement must be in writing, and will be deemed to have been duly received: (a)
when delivered by hand (with written confirmation of receipt); (b) when sent by
telecopier (with written confirmation of receipt), provided that a copy is
mailed by registered mail, return receipt requested; (c) when sent by registered
or certified mail; or (d) the day after it is sent by a nationally recognized
overnight delivery service, in each case to the appropriate addresses and
telecopier numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
IF TO THE COMPANY:
Xxxxxxx Xxxxx Life Insurance Company
0000 Xxxxxxx Xxxxx Xx., 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
Facsimile No.: 000-000-0000/0928
IF TO SERIES:
American Funds Insurance Series
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President
Facsimile No.: (000) 000-0000
WITH A COPY TO:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Senior Vice President and Senior
Counsel, Fund Business Management Group
Facsimile No.: (000) 000-0000
IF TO CRMC:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President and Legal Counsel,
Fund Business Management Group, and Secretary
Facsimile No.: (000) 000-0000
WITH A COPY TO:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Senior Vice President and Senior
Counsel, Fund Business Management Group
Facsimile No.: (000) 000-0000
21. If this Agreement terminates, any provision of this Agreement
necessary to the orderly windup of business under it will remain in effect as to
that business, after termination.
22. If this Agreement terminates, the Series, at the Company's option,
will continue to make additional shares of the Series available for all existing
Contracts as of the effective date of termination (under the same terms and
conditions as were in effect prior to termination of this Agreement with respect
to existing Contract owners), unless (i) the Series liquidates, (ii) CRMC
requests that the Company seek an order pursuant to Section 26I of the 1940 Act
to permit the substitution of other securities for the shares of the Series, or
(iii) applicable laws prohibit further sales. The parties agree that this
section shall not apply to any terminations made pursuant to Paragraph 19(e) and
19(k) of this Agreement. The Company agrees not to redeem shares unless: (i) the
Agreement is terminated pursuant to Paragraph 19(e), 19(f), or 19(k); (ii)
legitimately required to do so according to a Contract owner's request; or (iii)
under an order from the Commission or pursuant to a vote of Contract owners.
23. The obligations of the Series under this Agreement are not binding
upon any of the Trustees, officers, employees or shareholders (except CRMC if it
is a shareholder) of the Series individually, but bind only the Series' assets.
When seeking satisfaction for any liability of the Series in respect of this
Agreement, the Company and the Account agree not to seek recourse against said
Trustees, officers, employees or shareholders, or any of them, or any of their
personal assets for such satisfaction. Notwithstanding the foregoing, if the
Company seeks satisfaction for any liability of the Series in respect of this
Agreement, the Company (on behalf of itself or any Account) may seek recourse
against CRMC.
24. This Agreement shall be construed in accordance with the laws of the
State of New York.
25. This Agreement and the parties' rights, duties and obligations under
this Agreement are not transferable or assignable by any of them without the
express, prior written consent of the other parties hereto. Any attempt by a
party to transfer or assign this Agreement or any of its rights, duties or
obligations under this Agreement without such consent is void; provided,
however, that a merger of, reinsurance arrangement by, or change of control of a
party shall not be deemed to be an assignment for purposes of this Agreement.
26. The following Paragraphs shall survive any termination of this
Agreement: 4, 15, 16, 20-26.
27. The parties hereto acknowledge that the arrangement contemplated by
this Agreement is not exclusive; the Series' shares may be sold to other
insurance companies (subject to the second paragraph of this Paragraph 27) and
the cash value of the Contracts may be invested in other investment companies. A
funding vehicle other than those listed in Attachment B to this Agreement may be
made available for the investment of the cash value of the Contracts.
The Series and CRMC shall sell Series shares only to Participating
Insurance Companies and their separate accounts and to persons or plans
("Qualified Persons") that communicate to the Series and CRMC that they qualify
to purchase shares of the Series under Section 817(h) of the Code and the
regulations thereunder without impairing the ability of the Account to consider
the portfolio investments of the Series as constituting investments of the
Account for the purpose of satisfying the diversification requirements of
Section 817(h).
28. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Commission, the NASD, and state insurance regulators) and shall permit such
authorities reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby. Notwithstanding the generality of the foregoing, each party
hereto further agrees to furnish the Arkansas Insurance Commissioner with any
information or reports in connection with services provided under this Agreement
which such Commissioner may request in order to ascertain whether the variable
contract operations of the Company are being conducted in a manner consistent
with the Arkansas variable annuity laws and regulations and any other applicable
law or regulations.
29. The Series and CRMC agree to comply in all material respects with any
applicable state insurance laws or regulations (including the furnishing of
information not otherwise available to the Company that is required by state
insurance law to enable the Company to obtain the authority needed to issue the
Contracts in any applicable state, and including cooperating with the Company in
any filings of sales literature for the Contracts), to the extent notified
thereof in writing by the Company; provided that such compliance is not
inconsistent with any other laws or regulations applicable to the Series or
CRMC.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested as of the date first above written.
XXXXXXX XXXXX LIFE INSURANCE COMPANY
(ON BEHALF OF ITSELF AND EACH ACCOUNT)
Attest:
By: _______________________________
___________________________ Its:
AMERICAN FUNDS INSURANCE SERIES
Attest:
By: _______________________________
___________________________ Its: Secretary
CAPITAL RESEARCH AND MANAGEMENT COMPANY
Attest:
By: _______________________________
___________________________ Its: Vice President and Secretary
Attachment A
XXXXXXX XXXXX LIFE VARIABLE ANNUITY SEPARATE ACCOUNT A
XXXXXXX XXXXX INVESTOR CHOICE ANNUITY --
FORM ML-VA- AND STATE VARIATIONS THEREOF
Dated: March , 2005
Attachment B
American Funds Insurance Series:
Class 2 Shares of:
Asset Allocation Fund
Bond Fund
Growth Fund
Growth-Income Fund
International Fund
As of: March____, 2005
